Image source: Juvenile Justice System, (23rd March 2015, DAWN) Juvenile justice system – Newspaper – DAWN.COM accessed 22.02.2024.
Introduction
Primarily, while different countries have different laws, generally, those under 15 are considered to be doli incapax (deemed incapable of forming the intent to commit a crime) [1] and therefore, cannot be entirely guilty of their crimes. Keeping this in mind along with the ‘best interests of child’[2] While also protecting a child’s rights that were previously treated the same as an adult, the concept of a Juvenile Justice System started gaining traction and currently, the United Nations Convention on the Rights of Child, 1989 is the most ratified Convention among all the international human rights instruments. Furthermore, even instruments such as the Charter of the United Nations, the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights 1966 all mention fundamental rights i.e., inherent dignity, liberty and security of a person, arbitrary arrest and detention, etc. [3], which have been violated, particularly in the case of those that are underage, where there is a weak Juvenile Justice System or a lack of it.
Juvenile Justice System Comparison on a Global Level
In essence, this System seeks to deal with the wrongdoings of juveniles and, in turn, to protect them from being exploited at the hand of the law. One of the most emphasized issues is that of the punishments for minors; most of the Instruments prohibit the imposition of the death sentence for a crime committed by a child below 18 years of age, the case of Roper v. Simmons 543 U.S. 551 is an example of the development in the justice system for children where a death sentence was overturned by the US Supreme Court in 2015 by declaring it unconstitutional[4]. Nonetheless, it is crucial to acknowledge that despite being ratified by 193 countries, the guidelines set out in the UNCRC are not as readily implemented. For instance, the CRC keeps locking up children as the last resort and yet the United States has a large number of children in such facilities, about 160 people were on death row in Iran for crimes committed when they were under 18, in 2015 even when such punishments are forbidden[5].
According to Article 9 of the Constitution of Pakistan, 1973, citizens have the right to have their liberty and security respected. All state institutions must respect these civil rights, including the judiciary, civil service, and police, and they must not be disregarded for any reason. The police are particularly crucial in this regard. This article examines the prevalent use of force by the police on children in their care and the severe concerns raised when law enforcement officials abuse the authority granted to them by the law.
The child justice system in Pakistan does not adequately protect the human rights of juvenile offenders and does not follow international best practices. Pakistan has implemented legislation to safeguard the human rights of juvenile offenders who are involved in the child justice system to restore and integrate them into society.[6] However, in Pakistan, the criminal justice system has not yet succeeded in eradicating dishonesty in the reporting and registration of crimes (including the filing of false First Information Reports (FIRs) to satisfy personal grudges); in using force to influence, pressure, or attempt to coerce crime victims/survivors, whether they are adults or children.[7]
The number of people detained and the statistics on juvenile detention facilities are highly skewed. The organization for the protection of children’s rights (SPARC) reported on between 1500 and 2000 juvenile offenders housed in Pakistani prisons in their paper “The State of Pakistan’s Children.” However, it was predicted that this number will be a little higher than 1300 in March 2021. Ninety per cent of these criminals are only waiting for their trials, according to the same news story. In Punjab prison as of April 2021, there were 540 children, including teenage girls, and more than 464 were still awaiting trial. Around 260 minors are detained in Sindh, 510 in KPK, and 55 in Balochistan. This practice goes against the international guidelines, in particular, Article 37(b) of the UNCRC which states “…imprisonment of a child shall conform with the law and shall be used only as a measure of last resort and for the shortest appropriate period…”
Juvenile Justice System Act 2018
Juvenile offenders were ordered to suffer brutal and medieval punishments, as in the case of Sher Ali 2001, and as a result, the Juvenile Justice Ordinance 2000 (JJSO 2000), which was intended to protect minor delinquents, badly failed in this regard. Mohammad Nadeem was also given a 273-year prison term by a Lahore court sitting in an extra session in 2000. Because many kids were subjected to harsh punishments as a result of the JJSO 2000’s slow implementation, the idea of creating a juvenile justice system as a whole suffered severe and irreparable losses. The Juvenile Justice System Ordinance 2000 was repealed by the Juvenile Justice System Act 2018 (JJSA 2018), which was passed by Parliament in 2018. (JJSO 2000). As stated in Articles 23 and 25 of the JJSA 2018, it is an improvement to the law that aims to allow the state to enact specific measures for the legal protection of juvenile offenders. It also ensures that the new law supersedes any previous competing or incompatible laws, which the JJSO 2000 did not do.[8]
Despite the Juvenile Justice System Act of 2018 (JJSA 2018) being in force, young people in Pakistan have recently been the victims of prejudice and brutality in police stations and behind prison walls. Beyond the murders of police officers while in custody, JJSA 2018 has brought up some important issues. A juvenile detained for violating the law or who was found guilty of an offence was required by JSA 2018 to be housed in an observation home rather than a police station. Additionally, the parents or legal guardians of the child and the pertinent probation officer should be informed of the police’s arrest of the youngster. [9]
The Priyantha case serves as a noteworthy illustration of how Pakistan’s juvenile justice system operates. The court made two separate rulings in this matter, one for adults and one for minors (as nine accused were juveniles).[10] The juvenile justice system Act of 2008 created the division. The police conducted themselves fairly properly in the case by determining the ages of the accused at the time of the investigation. Alongside prosecutors, police officers, and the primary investigative report (as per S.173 of the Code of Criminal Procedure, 1898), to the degree that it relates to children. As a result, the defendants were given separate trials by the court, and they were found guilty by JJSA 2018.[11]
Although Pakistan ratified the convention against torture in 2010, there is no specific law that makes torture illegal there. During police investigations and their time in custody, juvenile criminals are frequently the targets of rape, torture, and deaths in custody. Widespread attention was given to the tragic incident in Peshawar involving the death of a 14-year-old boy. He was found dead in the West Cantt Peshawar police station. As expected, the death has ruled a suicide, despite the parents’ claims that their child had been tortured. To assign roles and determine the real cause of death of the kid who was arrested and held at the police station, this case should be examined in light of section 176 of the CRPC 1898. Evidently, despite ratifying various treaties that put great emphasis on fundamental rights, such reports show that Pakistan may be falling short in protecting these rights.
Even though S.20 of the JJSA 2018 permits the construction of observation homes, which are facilities where young people are momentarily imprisoned following police apprehension, after receiving a remand from a juvenile court, or for other purposes such as conducting inquiry or investigation. The aforementioned residences must be distinguished from police stations. Despite S.20 of the JJSA 2018, Pakistan’s juvenile detainees continue to be subject to an outdated, unfair legal system. In adult prisons, where they are gradually turned into horrific criminal offenders, a child’s innocence and naivete are further warped.[12] The Pakistani juvenile justice system is the main cause of this issue. There are now only two borstal institutions in Pakistan, however, statistics indicate that there are approximately 1400 young people incarcerated, 20% of them female. The worst part is that 90% of them are awaiting trial. In some of the worst cases, children had to wait until they were adults to have their cases heard before the courts condemned them to life in prison and executed them in their 30s and 40s without giving them the opportunity to improve as citizens by being placed in rehabilitation facilities.
We condemn young offenders to a life of crime by locking them up. If the law applicable to juvenile offenders, JJSA 2018, is effectively implemented in Pakistan and all parties involved (police, judiciary, prison authorities, and forensic experts) who are responsible for the protection of juvenile offenders’ rights carry out their responsibilities diligently, the aforementioned violations of child offenders’ human rights in the child justice system can be avoided.
As opposed to the approach taken in Pakistan, countries prefer to keep ‘trying’ the delinquencies of the youngsters as the last option but rather, to find reasons for such acts and then address the problem, if possible, through other means. Particularly, in the US, there are different definitions for juvenile delinquency in each state, therefore, each state works according to these. However, the interactions that Police have with juveniles differ; juvenile offenders are dealt with by the small department while the large ones may have to work with addressing youth problems. All in all, how the Police get power to deal with youngsters is limited to avoid the exploitation of power.[13]
Conclusion
What is distinguishable between the system in Pakistan and the ones around the world, is the involvement of social agencies, which are an alternative to punishment and are aimed more towards the development of the youth. For instance, in Great Britain, criminal proceedings of juveniles are highly restricted while care proceedings i.e. placement of the minor in a care home or foster home, etc. are given preference.[14] Moreover, the role of the Police is also quite simple and kept limited where they consult with the parties involved and agencies along with helping with the court’s proceedings; they also have specific Juvenile Bureaus which assign juvenile officers to work with the youth to ensure that the crime they may have committed in their adolescence doesn’t have an irreversible effect on their future. Additionally, countries situated in East Asia such as the Republic of Korea and Japan, along with having alternatives such as community service, counselling, etc. instead of punishing minors, restrict detention and arrests as much as possible where only in exceptional circumstances are these permitted[15]. If Pakistan was to adopt the approach used globally, as mentioned, perhaps a more developed and successful system of Juvenile Justice can be built.[16]
[1] Legal Minimum Ages And The Realization of Adolescents’ Rights, UNICEF, <https://www.unicef.org/lac/media/2771/file/PDF%20Minimum%20age%20for%20criminal%20responsibility.pdf> accessed 18 October 2022.
[2] Article 3, Convention on the Rights of Child.
[3] Reforming The Juvenile System, Report No.30, <http://www.ljcp.gov.pk/Menu%20Items/Publications/Reports%20of%20the%20LJCP/reports/report30.htm>accessed 16 October 2022.
[4] STA Law Firm, ‘International Perspective on Juvenile Justice’ (29 March, 2019) <https://www.mondaq.com/crime/793010/international-perspective-on-juvenile-justice>accessed 18 October 2022
[5] Human Rights Watch, ‘Children Behind Bars – The Global Overuse of Detention of Children’ (World Report 2016) <https://www.hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north>accessed 17 October 2022
[6] Wajahat Ali Malik, ‘ Children and Justice System in Pakistan’ ( 17 February)<https://pakngos.com.pk/children-and-justice-system-in-pakistan/>accessed16 October 2022
[7] Janet Reno, The Effective way to reduce and prevent juvenile crime is balance through enforcement measures with targeted, effective and intervention initiatives.< https://www.sparcpk.org/SOPC2019/JJSO.pdf>accessed 19 October 2022.
[8] Hira Naz, The Rotten Juvenile Justice System in the Country.
<https://dailytimes.com.pk/803097/the-rotten-juvenile-justice-system-in-the-country/>accessed 20 October 2022.
[9] Sarmad Ali, Juvenile justice system of Pakistan<https://dailytimes.com.pk/664341/juvenile-justice-system-of-pakistan/> accessed 19 October 2022.
[10] LUMS Law Journal, ‘Does Juvenile get a better law this time?’.
[11] Kamran Adil, Response to extremism priyantha case <https://rsilpak.org/2022/criminal-justice-response-to-extremism-priyantha-case/>accessed 19 October 2022.
[12] Wajahat Ali Malik, ‘Juveniles and Criminal Responsibility’ Daily times (1 March 2019).
[13] N L Weiner, ‘Police and Juvenile Justice in England America’, Bramshill Journal Volume I Issue II.
[14] Rida Zaman, The Juvenile Justice System Act of 2018<http://www.paradigmshift.com.pk/juvenile-justice-system-act-2018/>accessed 21 October 2022.
[15] Mr. Junsuke Yamaghuci ‘Role of the police in juvenile justice system in Japan’ – <https://www.unafei.or.jp/activities/pdf/joint_kenya/session2.pdf>accessed 21 October 2022.
[16] Raesa Fatima, Juveniles are victimized in pakistan, heres why?<https://dailytimes.com.pk/849887/juveniles-in-pakistan-are-victimized-heres-why/>accessed 21 October 2022.
Authors
Hamza Haroon (Research Assistant, RCIL & HR)
Filzah Asif (Research Assistant, RCIL & HR)